United States District Court, W.D. Virginia, Harrisonburg Division
Glen E. Conrad Chief United States District Judge.
Marie Thompson, a federal inmate proceeding pro se, filed
this action as a motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255. The government has
filed a motion to dismiss, and the time allotted for Thompson
to respond has expired, making the matter ripe for
consideration. For the reasons that follow, the
government's motion to dismiss will be granted and
Thompson's motion to vacate will be denied.
was indicted by a federal grand jury on October 9, 2003.
Count One of the indictment charged Thompson with conspiring
to possess with intent to distribute methamphetamine and
cocaine, in violation of 21 U.S.C. § 846. Count Two
charged her with operating a continuing criminal enterprise
("CCE"), in violation of 21 U.S.C. § 848.
Count Three charged her with using a firearm during and in
relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c). Thompson entered a plea of guilty to
Counts Two and Three, pursuant to a written plea agreement,
on May 4, 2004. Count One was dismissed at sentencing in
accordance with the plea agreement.
appeared for sentencing on August 23, 2004. The court granted
a substantial assistance motion filed by the government, and
ultimately sentenced Thompson to a term of imprisonment of
180 months for the CCE offense, plus 84 months for the
firearm offense. On April 7, 2015, the court reduced
Thompson's total term of imprisonment to 227 months,
pursuant to 18 U.S.C. § 3582(c)(2).
6, 2016, Thompson moved to vacate her sentence under 28
U.S.C. § 2255 based on the United States Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). Pursuant to Standing Order 2015-5, an
attorney in the Office of the Federal Public Defender was
appointed to represent Thompson and provide supplemental
briefing, if necessary, in light of Johnson. The
attorney subsequently declined to file any additional
pleadings and moved to withdraw from further representation.
The court granted that motion on July 13, 2016, and directed
the government to respond to the pending § 2255 motion.
August 9, 2016, the government filed a response in which it
moved to dismiss Thompson's motion. The court notified
Thompson of the government's motion, as required by
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
and gave her 21 days in which to file a response. As of this
date, no response has been filed. The matter is now ripe for
2255 sets forth four grounds on which a prisoner in federal
custody may collaterally attack her sentence: (1) "the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "the court was without
jurisdiction to impose such sentence"; (3) "the
sentence was in excess of the maximum authorized by law,
" or (4) the sentence "is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). The
petitioner bears the burden of proof by a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
case, Thompson claims that her conviction under 18 U.S.C.
§ 924(c) is no longer valid in light of the Supreme
Court's decision in Johnson v. United States, in
which the Court held that the residual clause of the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e), is unconstitutionally vague. Johnson, 135
S.Ct. at 2555-57. It is clear from the record, however, that
Johnson is not applicable to Thompson's case.
Section 924(c) provides for a mandatory consecutive sentence
for any defendant who uses a firearm during and in relation
to a "crime of violence" or a "drug
trafficking crime." 18 U.S.C. § 924(c). Although
§ 924(c)'s definition of a "crime of
violence" includes a residual clause similar to that
found in the ACCA, Thompson's § 924(c) conviction
was not based upon the residual clause. Instead, Thompson was
convicted of using a firearm during and in relation to a
"drug trafficking crime." See Indictment
at 7; Plea Agreement at 1; Judgment at 1. Because the
definition of a "drug trafficking crime" was not
called into question by Johnson, the decision has no
effect on the propriety of Thompson's conviction or
sentence. Accordingly, Thompson is not entitled to relief
under § 2255.[*] See United States v.
Richardson, 653 F.App'x 209, 210 n.* (4th Cir. 2016)
("Because the conviction underlying Richardson's 18
U.S.C. § 924(c) (2012) conviction was a drug offense
rather than a crime of violence, .. . Johnson is
inapposite, and he is entitled to no relief").
reasons stated, the court will grant the government's
motion to dismiss and deny Thompson's § 2255 motion.
Additionally, because Thompson has failed to make a
substantial showing of the denial of a constitutional right,
the court will deny a certificate of appealability. See 28
U.S.C. § 2253(c).
Clerk is directed to send certified copies of this memorandum
opinion and the accompanying order to the ...